Vyom Dipesh Raichanna Vs Union of India (Bombay High Court)
Conclusion: Re-testing of seized goods under Public Notice No.97/2017 was a facilitative right and could not be denied except on exceptional grounds duly recorded. Customs’ objection based on limitation and remnant sample requirement was also rejected and fresh sampling and re-testing was directed, with provisional release of goods permitted.
Held: Assessee’s consignment of cashew-nuts was seized by Customs under seizure memos. Samples were referred to an FSSAI laboratory in Kerala, which reported adversely. Earlier, when goods were detained, a Maharashtra laboratory had given a favourable report. Relying on Public Notice No.97/2017 (28.07.2017) providing for re-testing, assessee sought re-testing by drawing fresh samples. Customs rejected the request citing delay and that re-testing could be done only on remnants or duplicate sealed samples, not fresh samples. The main grievance of assessee concerned the refusal by department to re-test the seized goods. Department submitted that a re-test would be made only on the remnants of the samples originally tested or on the duplicate representative sealed samples in the custody of the Customs. He submitted that assessee was now seeking the drawing of fresh samples, which was impermissible even under the public notice of 28 July 2017. It was held that Guidelines under Public Notice No.97/2017 were trade facilitation measures, not rigid statutory rules. Facility of re-testing was ordinarily to be granted, denial permissible only in exceptional cases with recorded reasons. Customs’ resistance to re-testing inconsistent with objectives of trade facilitation and “Ease of Doing Business.” Arguments of delay and use of only remnants not persuasive in the facts. Directed fresh samples to be drawn from seized goods within 5 days, in presence of assessee’s representative, and sent to Central Revenues Control Laboratory, New Delhi, for re-testing. Report to be furnished within one month. Assessee was entitled to provisional release of goods subject to compliance.
